Safeguarding Freedom of Speech and of the Press in New York With Heightened State Constitutional Protection

By Erin M. Peradotto

May 6, 2020

Safeguarding Freedom of Speech and of the Press in New York With Heightened State Constitutional Protection


By Erin M. Peradotto

This article is part of New York Law: A View From the Bench, a special section in the May issue of the NYSBA Journal edited by Court of Appeals Associate Judge Michael J. Garcia. Read Judge Garcia’s introduction to the section here.

“Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”1

As “the media capital of the country if not the world,”2 New York has a long history and tradition of providing “a hospitable climate for the free exchange of ideas.”3 This includes “providing the utmost protection of freedom of the press.”4

Thirty-six years ago, in Beach v. Shanley, then-Associate Judge Wachtler advocated using the State Constitution in addition to New York’s “Shield Law”5 to quash subpoenas requiring a television reporter to appear before a grand jury and reveal confidential source information.6 Invoking principles of federalism, he stated:

The fact that the [United States] Supreme Court has held the First Amendment applicable to the States does not eliminate the right or the need of this State to provide a distinct guarantee of freedom of the press under the State Constitution . . . It is often forgotten that diversity is the essence of federalism and that the Federal Constitution only guarantees minimum protections, leaving to the States the task of affording additional or greater rights under their Constitutions, tailored to the special needs and traditions of the various States.7

Judge Wachtler then explained why it was particularly appropriate for New York to provide enhanced rights under the State Constitution in cases involving freedom of expression:

There is probably no area in which State attitudes are more diverse, and thus where independent State constitutional rights serve their intended purposes, than in the area dealing with freedom of expression . . . In the 19th century a large portion of the publishing industry was established in New York and the State began to serve as a cultural center for the Nation. It still enjoys that status. It is consistent with that tradition for New York to provide broad protections, often broader than those provided elsewhere, to those engaged in publishing.8

Almost 30 years later, the Court of Appeals in Holmes left no doubt that it would continue to use the State Constitution as a means of declaring expanded rights in New York in the area of free expression.9

It is, however, Immuno AG. v. Moor-Jankowski – decided seven years after Beach and over 20 years before Holmes – that had a lasting impact on the analytical approach used by the Court of Appeals in state constitutional law cases. Immuno arose from the publication by the defendant, the co-founder and editor of a scientific journal, of a letter to the editor critical of the animal research plans of the plaintiff, a multinational manufacturer of biologic products.10 When Immuno first reached the Court of Appeals in 1989, the Court, in an opinion authored by then-Associate Judge Kaye, affirmed the order of the First Department granting the defendant’s motion for summary judgment based on the plaintiff’s failure to raise a question of fact as to the falsity of the alleged defamatory statements.11 The Court also concluded that the letter writer’s statements of opinion were “entitled to the absolute protection of the State and Federal constitutional free speech guarantees.”12

The United States Supreme Court thereafter granted certiorari on the plaintiff’s petition, vacated the judgment, and remanded the case to the Court of Appeals for further consideration in light of Milkovich v. Lorain Journal Co.,13 which had been decided after the Court of Appeals first decided Immuno. On remand, the Court of Appeals, in an opinion again authored by Judge Kaye, adhered to its prior determination that summary judgment was properly granted in the defendant’s favor, this time “premising [its] decision on independent State constitutional grounds as well as the Federal review directed by the Supreme Court.”14 The Court repeated its view regarding New York’s freedom of the press:

“The expansive language of our State constitutional guarantee (compare, NY Const, art I, §8, with US Const 1st Amend), its formulation and adoption prior to the Supreme Court’s application of the First Amendment to the States . . . the recognition in very early New York history of a constitutionally guaranteed liberty of the press . . . and the consistent tradition in this State of providing the broadest possible protection to ‘the sensitive role of gathering and disseminating news of public events’ . . . all call for particular vigilance by the courts of this State in safeguarding the free press against undue interference.”15

The Court opened its State constitutional law analysis by reiterating:

that matters of free expression in books, movies and the arts . . . are particularly suited to resolution as a matter of State common law and State constitutional law, the Supreme Court under the Federal Constitution fixing only the minimum standards applicable throughout the Nation, and the State courts supplementing those standards to meet local needs and expectations.16

The Court recognized its role in the federal system but also its responsibility to settle the law in New York. On that point, it observed that the rule in Milkovich regarding the opinion privilege now seemed to limit First Amendment protection for statements that contained or implied provably false facts to loose, figurative, hyperbolic language.17 At minimum, the rule seemed unsettled as a matter of federal law and the Court expressed concern that, “if indeed ‘type of speech’ is to be construed narrowly[,] insufficient protection may be accorded to central values protected by the law of [New York].”18

Drawing on New York’s unique constitutional text and history, as well as New York’s common law, the Court reaffirmed its view that, in deciding whether a reasonable person would read the challenged statements as expressing or implying facts about the plaintiff, those statements had to be read in context, with an analysis that looked first at the content of the whole communication, as well as its tone and apparent purpose.19 It concluded that this approach “accords with the central value of assuring full and vigorous exposition and expression of opinion on matters of public interest.”20

Although the Immuno Court was unanimous as to the result, it was divided as to the methodology that should be used in analyzing state constitutional cases. In one of three concurring opinions, Judge Simons criticized the majority’s “dual reliance” on the federal and state constitutions – he would have applied federal law first, resorting to the state constitutional analysis only if necessary.21 In a compelling defense of the majority’s dual analysis, Judge Kaye stated that, “[i]n analyzing cases under the State Constitution, this Court has not wedded itself to any single methodology, recognizing that the proper approach may vary with the circumstances.”22 She explained that a dual analysis was appropriate under the circumstances of Immuno because, among other things: the case involved liberty of the press, an area in which New York had its own “exceptional history and rich tradition”; the interests of finality and judicial economy favored resolving the case, given that the matter was before the Court on summary judgment presenting only questions of law and the State law issues had been fully briefed; and the federal analysis directed by the Supreme Court, with which the Court complied, did not compel it to ignore the developed, controlling State law issues.23

Fifteen months after Immuno was decided, Judge Kaye would make a strong and important statement on the nature of judicial decision-making in applying constitutional principles. In a concurrence foreshadowed by Immuno, Judge Kaye noted the philosophical differences in the approach to state constitutional law cases that “seemed to fracture the Court.”24 She stated:

[H]owever much we might consider ourselves dispensing justice strictly according to formula, at some point the decisions we make must come down to judgments as to whether a particular protection is adequate or sufficient, even as to whether constitutional protections we have enjoyed in this State have in fact been diluted by subsequent decisions of a more recent Supreme Court . . . [W]here we conclude that the Supreme Court has changed course and diluted constitutional principles, I cannot agree that we act improperly in discharging our responsibility to support the State Constitution when we examine whether we should follow along as a matter of State law.25

In direct response to the dissent’s discomfort with the majority’s analysis, Judge Kaye stated emphatically:

A State court decision that rejects Supreme Court precedent, and opts for greater safeguards as a matter of State law, does indeed establish higher constitutional standards locally. But that is a perfectly respectable and legitimate thing to do . . . Time and again in recent years, the Supreme Court as well as its individual Justices have reminded State courts not merely of their right but also of their responsibility to interpret their own Constitutions, and where in the State courts’ view those provisions afford greater safeguards than the Supreme Court would find, to make plain the State decisional ground so as to avoid unnecessary Supreme Court review. The Supreme Court is not insulted when we do so.26

Judge Kaye’s advocacy for a flexible approach to decision-making in state constitutional cases is one of the legacies of Immuno. Consistent with the principles that the State Constitution exists as an independent protector of individual rights and that state courts are the arbiters of their own constitutions,27 Judge Kaye appreciated that being tied to a particular methodology in these cases could prevent the State Constitution from functioning and could hinder the Court in fulfilling its responsibility to interpret and apply the State Constitution to provide enhanced rights when appropriate in cases involving freedom of speech and of the press. Immuno ensured that there would be no such constraints.

Erin M. Peradotto is an associate justice of the Appellate Division, Fourth Department. Justice Peradotto gratefully acknowledges the valuable assistance of her confidential law clerk, Joseph Sroka, in the preparation of this article.

1. NY Const art I, § 8.

2Matter of Holmes v. Winter, 22 N.Y.3d 300, 316 (2013), cert denied 572 US. 1135 (2014).

3Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991), cert denied 500 US 954 (1991), citing Beach v. Shanley, 62 N.Y.2d 241, 255-256 (1984) (Wachtler, J., concurring).

4Holmes, 22 N.Y.3d at 307.

5. Civil Rights Law § 79-h.

6See Beach, 62 N.Y.2d at 255-256 (Wachtler, J., concurring).

7Id. at 255.

8Id. at 255-256.

9See 22 NY3d at 316 [relying on New York Constitution article I, § 8 and New York’s Shield Law to deny subpoena application from another state seeking testimony from a reporter because of substantial likelihood that the reporter would be compelled to reveal confidential sources]).

10See 77 N.Y.2d at 240.

11Immuno AG. v. Moor-Jankowski, 74 N.Y.2d 548 (1989).

12Id. at 555; accord Immuno AG., 77 N.Y.2d at 239.

13. 497 U.S. 1 (1990).

14Immuno AG., 77 N.Y.2d at 240.

15Id. at 249, quoting O’Neill v. Oakgrove Constr., 71 N.Y.2d 521, 528-529 (1988).

16Id. at 248.

17Id. at 245.

18Id. at 250.

19Id. at 250-252, 254-255; see Steinhilber v. Alphonse, 68 N.Y.2d 283, 293 (1986).

20Immuno AG., 77 N.Y.2d at 255 (internal quotation marks omitted).

21Id. at 262 (Simons, J., concurring).

22Id. at 251.

23Id. at 250-252.

24People v. Scott, 79 N.Y.2d 474, 503 (1992, Kaye, J., concurring).

25Id. at 504.

26Id. at 504-505.

27See Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 St. John’s L Rev 399 (1987), reprinted from 42 Rec of Assn of Bar of City of NY 285 (1987).

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